The hearing panel found that respondent failed to answer a
request for investigation as required by MCR 9.113(A). Respondent
seeks review of the hearing panel’s order of reprimand. We vacate
the panel’s order and dismiss the formal complaint.

Respondent was charged, in Count I of the formal complaint, with:
failure to refrain from representing a client after being
discharged; failure to keep the client reasonably informed;
settling a matter without the knowledge and consent of the
client; and failure to explain a matter to the extent reasonably
necessary to permit the client to make informed decisions. After
a hearing at which the client testified, the panel concluded that
the allegations were not proven, and Count I was dismissed. The
dismissal of Count I is not challenged on review.

Count II alleged that a request for investigation filed in the
name of the Grievance Administrator was served on respondent on
March 6, 1996 and that respondent failed to answer the Request
for Investigation within twenty-one days of service as required
by MCR 9.113(A). In his answer to the formal complaint,
respondent asserted:

I refused (not failed) to answer an unsigned request for
investigation. I promptly responded to the complaint both by
phone and by mail. See the attachments. [Answer, Paragraph 13.]

One of those attachments is respondent’s letter dated March 12,
1996, to the Grievance Administrator, in response to the request
for investigation. In this letter, (introduced into evidence at
the hearing by the Grievance Administrator as Petitioner’s
Exhibit #8), respondent enumerated several objections to the
request for investigation and his reasons for refusing to provide
an answer.

The duty to answer a request for investigation is set forth in
MCR 9.113(A). That rule directs that the respondent/attorney must
file an answer within twenty-one days after being served. MCR
9.113(B) provides that a failure to answer within the time
allowed is misconduct, but it also provides that an express
refusal to answer has different consequences:

(B) Refusal or Failure to Answer.

(1) A respondent may refuse to answer a request for
investigation on expressed constitutional or professional
grounds.

(2) The failure of a respondent to answer within the time
permitted is misconduct. See MCR 9.104(7).

(3) If a respondent refuses to answer under subrule (B)(1), the
refusal may be submitted to a hearing panel for adjudication.

Respondent’s letter of March 12, 1996 (Petitioner’s Exhibit #8)
clearly constituted a refusal to answer a Request for
Investigation "on expressed constitutional [and]
professional grounds" within the meaning of MCR 9.113(B)(1).
Respondent based his refusal on the purported unconstitutionality
of the discipline system and the refusal of his client to waive
the attorney/client privilege, among other things.

The Administrator argues that MCR 9.113(B)(3) does not require
him to submit a respondent’s refusal to answer a request for
investigation to a hearing panel. This is true.[1]However,
if the respondent’s constitutional or professional objections are
not resolved by a panel order requiring respondent to answer the
request for investigation, the respondent is not guilty of a
"failure to answer" within the meaning of MCR 9.104(7).

Refusal to answer a request for investigation based on expressly
stated grounds is plainly allowed by MCR 9.113(B)(1). That rule
is consistent with MRPC 3.4(c), which provides that a lawyer
shall not:

knowingly disobey an obligation under the rules of a tribunal except
for an open refusal based on an assertion that no valid
obligation exists. [Emphasis added.]

Also, MRPC 8.1(b) provides that a lawyer shall not
"knowingly fail to respond to a lawful demand for
information from an admissions or disciplinary authority, except
that this rule does not require disclosure of information
protected by Rule 1.6."

These rules have, in one form or another, been in effect for
years without causing a flood of frivolous objections to requests
for investigation. MCR 9.113(B)(3) provides an expedient and
logical procedure by which objections to requests for
investigation may be raised and adjudicated. Our rules penalize
disregard of an investigation, not the assertion of an argument
regarding its propriety.

The Administrator could have submitted the respondent’s refusal
to a hearing panel for adjudication as provided in MCR
9.113(B)(3). If the panel had ruled that respondent’s refusal was
an appropriate exercise of constitutional rights and/or
privileges, the Administrator would have been foreclosed from
bringing formal charges alleging that respondent had failed to
answer. If, on the other hand, the panel determined that
respondent’s refusal to answer was improper, and respondent did
not thereafter answer, then the respondent could have been
subject to disciplinary sanction for failure to answer the
request for investigation.

CONCLUSION

Respondent did not ignore a request for investigation.
Rather, he submitted a timely challenge to the request for
investigation based on what appear to be sincere, if ultimately
erroneous, readings of the court rules and interpretations of the
constitution. That response was allowed by the rules. The hearing
panel’s order of discipline reprimanding respondent is vacated
and the formal complaint is dismissed.

[1]
The prior rule, MCR 9.114(A)(2), made the submission of the
refusal to answer to a hearing panel mandatory:

If a respondent refuses to answer under MCR 9.113(B)(1),
the refusal must be submitted to a hearing panel for
adjudication. [Former MCR 9.114(A)(2); emphasis added.]

Effective June 1, 1987, that provision was renumbered and
modified by replacing "must" with "may."
The staff comment to that amendment says:

The submission to a hearing panel is permissive rather
than mandatory, since, in most cases, the administrator will
not contest the propriety of respondent’s exercise of a
privilege, and submission to a hearing panel in such
circumstances would be unnecessary. (Emphasis added.)